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The gender of judges and magistrates presiding over GBV cases does matter

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Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

How much does a magistrate or a judge’s individual perspective on gender matter in decision making? What role are our courts playing in helping the fight against GBV?

As we approach National Women’s Day this weekend, I would like to reflect on what the UN Office on Drugs and Crime (UNODC) calls “articulations of the gendered inequalities, stereotypes, norms and values that are prevalent in cultures and societies”. In particular, reflecting on the role our courts and, particularly, women magistrates and judges play in the fight against gender-based violence (GBV).

The government of South Africa is probably running out of words and phrases to use in flowery promises to eradicate GBV. Yet, despite these statements, the experiences of women at the front end of the criminal justice system is markedly different from men’s experiences.

It comes as no surprise that, even during Women’s Month, the Directorate for Priority Crime Investigation (Hawks) exhibited heavy-handedness against a woman suspected of ordinary crimes. Heavy handedness, not in the form of guns and batons, but abuse of special investigatory powers. Norma Gigaba was denied procedural justice and was subjected to unconstitutional process-based investigative decisions. Of course, the coin has two sides, and the Hawks will tell us otherwise to justify their actions.

Have you ever asked the question: how much does a magistrate or a judge’s individual perspective on gender matter in decision making? What role are our courts playing in helping the fight against GBV?

These are questions considered in Feminist Judgments of Aotearoa New Zealand, Te Rino: A Two Stranded Rope, a 2018 book by Kathryn M Stanchi, Bridget J Crawford and Linda L Berger on the global Feminist Judgments Project (FJP). In the US, the FJP is essentially a global collaborative project of feminist law academics who reimagine and rewrite key judicial decisions from a feminist perspective, using the facts and precedent of the original opinion but with their judging taking a “feminist perspective that takes into account race, class, gender, disability and other status groups historically marginalised by the law”.

This new feminist critique of key judgments and praxis projects uses legal fiction as its methodology. The African FJP was co-ordinated by Dr Sibongile Ndashe (Initiative for Strategic Litigation in Africa, Johannesburg), Dr Sharifah Sekalala  (Warwick Law School) and Professor Ambreena Manji (Cardiff Law School).

One of the questions asked of participants in the project related to the difference a judge with a feminist perspective could make in the reasoning or result in a case. The crux of the project is that the obligation of impartiality of the judiciary and the notion that judgment is neutral is a fallacy. Also, gender difference does make a real difference on the bench.

You read this judgment, in particular the defence for the accused, and suddenly a clear picture of the backward perception of some men about women becomes clear.

In South Africa, I can make reference to a litany of cases, but the case of S v Nobade (2019), decided by Judge Gayaat Salie-Hlophe in the Cape High Court, comes to mind. The case involved 57-year-old Goodman Nobade, who assaulted and murdered his wife, Agnes Msizi, 37, in Site B, Khayelitsha, Cape Town. He then dismembered her body and disposed of her body parts at various locations in and around the area of Khayelitsha. Salie-Hlophe touched on what many advocates against GBV should be happy about, namely a clear statement from our courts that they also have the mandate to help combat GBV.

“It is thus important and the duty of the courts to contribute in our role as the justice system to impose appropriate sentences, particularly where women are murdered in the context of their marriages, their relationships and homes,” remarked Salie-Hlophe [para:22]. 

By her own admission this is not to say the offender must be “sacrificed at the altar of deterrence for other would-be offenders, nor can it impose punishment in anger”, our justice system should be decent enough to afford real justice to victims of serious crimes. Otherwise, confidence in the courts will be lost. Already confidence in law enforcement is lost, with the Hawks now pandering to the narrow interests of political figures.

You read this judgment, in particular the defence for the accused, and suddenly a clear picture of the backward perception of some men about women becomes clear. For instance, counsel for the accused wanted to convince the judge during sentencing to “take into account that the accused’s lowered perception of women and their subservient role to men [as emanating] from a cultural perception” [para:23]. You would be excused for thinking that this lawyer still lives in, and was educated as a lawyer in, some cave somewhere on planet Mars. Who still thinks that way?

The sordid excuses from the legal practitioner did not end there. He attempted to convince the court that Nobade should be gifted a lesser sentence by claiming the crimes of the accused “were committed in the course of an unhappy marriage, more particularly that the deceased did not oblige the accused as he deemed fit and thus ought to be seen by this court as crimes of passion” [para:23].

This case might not have grabbed much media attention and commentary on platforms like Daily Maverick, but in my view, the decision handed down by Salie-Hlophe must form one of the long-awaited legislative amendments promised by President Cyril Ramaphosa.

Salie-Hlope — like other judges — has set the tone for the legislature by invoking the full might of the sentencing law in South Africa by imposing a sentence in excess of the one prescribed in minimum sentencing law [para:29]. According to Salie-Hlophe, and correctly so in my view, the prescribed minimum period of 15 years “would be woefully inappropriate” for crimes committed by an accused who had been heartless and who played the game of a pathological husband.

“I am of the view that you must be removed from society for the duration of your life,” said Salie-Hlophe [para:30]. “No other sentence would be just and equitable other than to imprison you for life and accordingly I sentence you to a term of life imprisonment.”

As noted by the International Association of Women Judges  (IAWJ), which has a chapter in South Africa (SAC-IAWJ) led by Justice Mandisa Maya who is also the President of the Supreme Court of Appeal (SCA),  “incidents of violence against women are widespread, yet only a small portion of these reach the courtroom… For those cases that do reach the justice system, some collapse within the judicial process.” 

It is encouraging to see judges like Salie-Hlophe, through their bold judgments, and efforts by SAC-IAWJ spearheading the protection of women against GBV and other forms of violence and discrimination.

Happy National Women’s Day to all women in South Africa. DM

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